Edith Windsor, whose case led to an appeals court in Manhattan striking down the Defense of Marriage Act.

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Originally published on October 19, 2012 6:12 pm

A federal appeals court ruling on Thursday has catapulted a New York case to the head of the line, as the Supreme Court considers which of many cases it should use to decide whether the 1996 Defense of Marriage Act (DOMA) is constitutional.

For more than a year, the lower courts have been issuing decisions striking down DOMA, declaring the law's provisions to be unconstitutional discrimination. The statute defines marriage as being only between a man and a woman, meaning that the federal government is barred from recognizing same-sex marriages even when they are legal and recognized by state law.

So, if a same-sex couple is legally married in any of the six states where gay marriage is authorized, that marriage is not recognized by the federal government. That also means that such couples are denied benefits under hundreds of federal laws — benefits that are automatically granted to heterosexual married couples. Examples include Social Security survivors benefits and spousal health benefits for federal employees.

In the case from New York this week, a same-sex couple was denied a tax benefit. A New York widow paid $363,000 in federal estate taxes when her same-sex spouse died. She would not have had to pay that money had her spouse been a man.

The New York decision quickly jumped to the head of the queue of DOMA cases pending before the Supreme Court. Currently, there are seven such cases, all involving decisions striking down DOMA. Until Thursday, however, only one had run all the usual legal hurdles and been decided by an appeals court. The catch with that case was that it appeared Justice Elena Kagan might be recused, which would leave an eight-justice court to hear the case, and the possibility of a 4-to-4 tie vote.

The recusal problem was clearly of concern to the justices, and so they put off consideration of all of the DOMA cases at the beginning of the term. Knowing that the New York case was about to be argued, the justices were apparently hoping it would be decided and appealed.

That is, in fact, exactly what happened. In amazingly short order, the appeals court issued a 43-page decision just two weeks after hearing oral arguments. This effectively put the case at the head of the Supreme Court line.

Also pending at the Supreme Court is a lower court decision that strikes down California's Proposition 8, which bans same-sex marriage. The justices could decide to pair that case with the DOMA case, but there are also good reasons that will not happen. The court usually tries to avoid jumping headlong into major social issues. It most often tries to act slowly, one bite at a time.

If the court were to strike down DOMA, that still would leave in place state laws banning same-sex marriage. Since the Proposition 8 case only involves California, not the whole country, it could punt on the case. Alternatively, the court could simply send the Proposition 8 case back to the lower court to re-evaluate the question in light of any new standards set out in a DOMA ruling.

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Transcript

MELISSA BLOCK, HOST:

Yesterday in New York, a federal appeals court struck down the Defense of Marriage Act or DOMA, arguing that it violates the constitutional rights of same-sex couples. It is the seventh federal court to do so, and many think this case is now the one most likely to be taken up by the Supreme Court when it weighs in on the issue of same-sex marriage.

Joining me is NPR legal affairs correspondent Nina Totenberg.

And, Nina, we said seven federal courts have now struck down the Defense of Marriage Act. How will the Supreme Court decide which case of these, if any, it's going to take for review?

NINA TOTENBERG, BYLINE: Well, there are rules and some of them are ambiguous. But what's not ambiguous is that when a lower court strikes down a federal law, that's headed straight to the Supreme Court. Here, of course, we've got seven of them.

BLOCK: Let's review what the real issues are here. The Defense of Marriage Act, passed by Congress in 1996, defines marriage as only between a man and a woman. What are the implications of that, the practical effect?

TOTENBERG: Well, it means that the federal government is barred from recognizing same-sex marriages even when they're legal and recognized by state law. So if you're a legally married same-sex couple in any one of the six states where gay marriage is authorized, you're still not recognized as legally married by the federal government. And that means that you're denied benefits under literally hundreds of federal laws, benefits that go to heterosexual married couples, things like Social Security survivor's benefit or spousal health benefits for federal employees.

And in the case from New York this week, it was a tax benefit. A New York widow had to pay $363,000 in federal estate taxes when her same-sex spouse died, money that she would not have had to pay if her spouse was a man.

BLOCK: And why is this case from New York the one that most court watchers think the Supreme Court will ultimately take up?

TOTENBERG: Well, as we said, there are seven cases currently before the court. And in all of them, the lower courts struck down DOMA. But until this week, only one of those cases had run all the usual legal hurdles and been decided by an appeals court. And it appeared that in - that one case, Justice Elena Kagan might be recused because she may have had something to do with the case when she was solicitor general in the Obama administration. And it's been pretty obvious that the court was worried about that because an eight-justice court could end up in a 4-4 tie.

BLOCK: Mm-hmm.

TOTENBERG: So the court just put off consideration of all of these cases at the beginning of the term. And, you know, you just have to conclude this speculation. But it seems pretty obvious that the Supreme Court hoped that the New York case would be decided. And, in fact, that's exactly what happened in amazingly short order. The appeals court issued its 43-page decision just two weeks after hearing oral arguments.

BLOCK: So, Nina, what happens now?

TOTENBERG: So, in all likelihood, the court will take the New York case, hold the other ones to wait for what happens. And it'll probably hear it in March. It's conceivable that it could go over until next term, but I doubt that very much.

BLOCK: Also at the Supreme Court is a lower court decision that strikes down California's Proposition 8. Proposition 8 banned same-sex marriage. What's going to happen with that case?

TOTENBERG: Well, the court could hear that with the DOMA case, but there are also good reasons not to. The justices usually try to avoid sort of jumping headlong into huge social issues. They often try to act slowly, one bite at a time, one step at a time. If the court were to strike down DOMA, that would still leave state laws that banned same-sex marriage in place. And the court could probably punt on Prop 8 because it only involves California, not the whole country. Or the court could even send the case back and say, look, we have new rules that we've established in this DOMA case. Now, apply that to your Prop 8 case.

BLOCK: NPR's Nina Totenberg. Nina, thanks so much.

TOTENBERG: Thank you.

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This is ALL THINGS CONSIDERED from NPR News. Transcript provided by NPR, Copyright National Public Radio.